Free & Fair

April 1, 2008

Edward B. Foley
Chief Justice Thomas J. Moyer Professor for the Administration of Justice and the Rule of Law
Moritz College of Law

The first part of this three-part commentary explained why it is problematic when a federal court extends polling hours in specified precincts. This second part proposes a standard for identifying the limited circumstances in which a judicial decree of this kind would be justified. (Rare, after all, is not the same as never, and it is necessary to distinguish in a principled way the category of justifiable interventions from the category of unjustifiable ones.) The final installment will apply the standard set forth here to the federal decree issued on March 4 in the Ohio primary.

A Working Rule of Equity for Election Day

Different circumstances might arise on Election Day that might cause candidates, political parties, voting rights groups, or others to consider asking a federal judge to extend polling hours. In particular, excessively long lines at polling places may be caused by various possible problems: for example, machine failures or shortages; poll worker inadequacies; or a lack of paper ballots for part of the day.

Even with all the problems that have occurred at polling places in recent elections, it may not be possible to anticipate all the future situations that might trigger a sympathetic request for an extension of hours. Still, it is possible to prepare a useful working rule to guide federal judges in the exercise of their powers as courts of equity to prevent irreparable harm resulting from violations of federal law.

Here’s a working rule that I would propose:

Federal courts should not extend polling hours in some, rather than all, precincts voting in the same election unless either

irresponsible conduct by state officials has caused voters in some precincts to be denied an opportunity to cast a ballot; or

state officials act irresponsibly in light of an unforeseeable but now precipitous denial of equal voting opportunities; and all three of the following conditions apply:

the federal courts are unable to fashion a more narrowly tailored decree applicable only to those voters denied equal voting opportunities;

an extension of polling hours limited to specific precincts reduces, rather than increases, the overall inequality of voting opportunities among similarly situated citizens within the electorate; and

it would be unreasonable for a candidate to object to the selective extension on the ground that its selectivity unfairly advantaged an opponent.

Each element of this working rule deserves some explanation.

Presumption against Selective Extension

Because of the Equal Protection concern described in Part I of this commentary, the working rule is phrased so that no selective extension is the “default” position, and a heavy burden of persuasion is on those who would have a federal court impose a presumptively discriminatory decree.

More generally, federal courts are not our nation’s “first responders” to any polling place problem that may occur on Election Day. Instead, they are our “last line of defense,” to be invoked only when state officials with authority to administer elections have failed to address the situation responsibly. The presumption against federal court intervention on Election Day reinforces the basic proposition that aggrieved parties should look elsewhere for relief—and come to federal court only upon a showing that the pursuit of other avenues of redress is unavailing.

Irresponsible Conduct by State Officials

It is not enough that bad things happen at polling places. Those bad things must be attributable to what state officials did or did not do.

Moreover, for purposes of considering the propriety of federal court intervention, the issue should not be simply whether particular poll workers have made a mistake. We know that it is inevitable that some poll workers will make some mistakes on Election Day. If poll worker error justified extension of polling hours, we might as well just extend polling hours right now, rather than at the last minute. We can require an extra two hours of voting everywhere because of the likelihood of poll worker errors anywhere.

But if the state has already provided for a constitutionally reasonable number of polling hours on Election Day (even given the likelihood of prevalent poll worker errors), then it is inappropriate for a federal court to extend polling hours just because those errors do occur. The state has planned in advance in a constitutionally appropriate way, and it would be inappropriate for a federal court to disrupt that plan.

It is important to adopt this “advance planning” perspective in considering the justifiability of federal court intervention. One should be able to ask well ahead of Election Day whether the relevant state officials have adopted a responsible plan for the recruitment and training of poll workers, the purchase and implementation of voting equipment, the allocation of supplies—including paper ballots—among precincts, and back-up protocols in the event of unanticipated shortages and other contingencies.

If an examination of the state’s advanced plans for administration of the election look constitutionally appropriate, providing equal voting opportunities to all citizens, then it becomes hard to say on Election Day that the state has committed a constitutional violation that warrants a federal remedy. This point is partially one about the nature of the constitutional right at stake. The right is best understood as equal access to an electoral system designed to be fair to all. The Constitution cannot guarantee that the electoral system will operate perfectly in all circumstances, and thus the state does not violate the Constitution just because the electoral system does not operate perfectly in a particular instance.

This point is also one about the timing of the request for federal court intervention. If a party waits until Election Day to challenge a state’s election system in court, it reasonably can be asked whether the party could have—and should have—brought a challenge earlier, which would have been immensely preferable for a variety of reasons previously catalogued by election law scholars. If election officials have planned responsibly, their plans will include the kind of contingency measures that will reduce the risk that unanticipated events will cause a denial of voting opportunities. For example, election officials will stock precincts with back-up ballots, in the event that their regular supply runs low or their machines become inoperable. Likewise, even if a precinct runs out of its back-up ballots before it can be resupplied with more, good planning will have instructed poll workers to permit all voters at a precinct to use machines that initially were set aside for voters who need them because of their disabilities.

Denial of Voting Opportunities

Even if election officials have planned poorly (and there has been no pre-election litigation to remedy this misadministration), it does not follow that problems that arise at polling places will actually disenfranchise voters.

Federal courts should make sure that conditions are actually causing the disenfranchisement of voters before considering whether to extend polling hours selectively on Election Day. If paper ballots have run out, but waiting voters are able to use a machine originally designated for disabled voters, then there is no disenfranchisement for the federal court to remedy. Likewise, if no functioning machine is available, and the precinct lacks paper ballots except for provisional ballots, the poll workers could use those provisional ballots until the precinct is restocked, so that no voter leaves the polling place without the ability to cast a ballot (which, after all, is the basic purpose of provisional ballots). And even if a wait develops because a polling place becomes temporarily deprived of any means by which voters there can cast a ballot, there is no disenfranchisement if the wait ends up being short enough that no voter leaves before the casting of ballots becomes possible again.

Furthermore, even if a voter does leave before it is possible to cast a ballot, the voter’s situation may not amount to a constitutional violation. Having to wait a half-hour to vote a particular precinct at a particular time on Election Day, when other voters get to cast their ballots in less than 15 minutes, is not an inequality of voting opportunity that rises to the level of a constitutional violation. Half-hour waits are to be expected even when a polling place remains amply stocked with a supply of paper ballots. Thus, the fact that running out of ballots causes a half-hour delay that otherwise would not exist does not violate Equal Protection.

In assessing how long a wait is constitutionally problematic, the availability of alternative voting opportunities before Election Day is relevant. If a state offers—and amply publicizes—the option of “no excuse” vote-by-mail for several weeks, or if the state sets up in-person “early voting” locations, then the length of the line to vote on Election Day itself must be evaluated in light of the entire opportunity to vote that the state has provided its citizens. Conversely, if voting at a single polling place on Election Day is a voter’s only option, then a long line at that location that causes a voter to leave before casting a ballot becomes more constitutionally intolerable. Perhaps, as a rule of thumb, delays of over one hour at polling places that are a voter’s only option are constitutionally suspect, whereas a wait at a polling place must be two hours in length to be constitutionally injurious if the voter has already had ample opportunities to cast a ballot before Election Day.

Irresponsible Response to Unforeseeable Problems

Even with the best advanced planning, sometimes problems occur that could not have been predicted. Those problems might prevent voting in some precincts, but not others, thereby causing can an inequality in voting opportunities among citizens depending on their location. A line of tornados, for example, may move through a state on Election Day, requiring the early closing of some polling places for the safety of workers and voters there. Yet polling places remain open as planned in unaffected areas elsewhere in the state.

Still, it does not follow (without more) that the situation calls for a federal court order to provide extra voting for those precincts shut down by the tornados. We need to know the response of the relevant officials to the electoral dilemma caused by the tornado-induced early closing of some polling locations. We need then to assess whether that official response was reasonable in light of the circumstances and competing considerations. Only if the official response was arbitrary and capricious in light of the situation can it be said that the state officials violated the constitutional rights of the affected voters.

Suppose, for example, that the tornado caused officials to close half the precincts in one county two hours early. The officials considered whether to reopen precincts later that night after the storm had passed. They decided not to, however, because:

The soonest polls could reopen would be two hours after their regularly scheduled closing time (four hours after closing early), at 10:00 pm.

It might be impossible to convince poll voters to return to duty at that time, in part because many of them would have become involved in the local community’s emergency response to assist families dispossessed of their homes because of tornados (assuming the poll workers were not themselves among the dispossessed—which would make their return even less likely).

It would be burdensome on election officials elsewhere to wait until midnight to begin the counting and reporting of results, yet it would be inappropriate to report results before re-opened precincts began voting again at 10pm.

Because (to continue with this hypothetical scenario) the state offered “no excuse” absentee and early voting, the relevant election officials concluded that not re-opening was less undesirable than re-opening. Simply put, responding to the tornado became a higher priority to the local community than providing an extra two hours of Election Day voting between 10pm and midnight (to make up for the two hours of lost voting opportunities because of the tornados). This official judgment might not be the right one, but it is certainly not arbitrary and capricious. It would be inappropriate for a federal court, disagreeing with this reasonable decision, to overturn it as unconstitutional.

The Unavailability of a More “Narrowly Tailored” Remedy

Assuming a federal court gets to the point where it justifiably believes there to be (or at least likely to be) a constitutional violation in need of redress, the court still needs to ask whether there might be an effective remedy short of an unqualified extension of polling hours in selected precincts.

Suppose, for example, the problem is a complete inability to cast ballots at a particular precinct for over two hours at the beginning of the morning on Election Day (because poll workers are missing a critical piece of equipment necessary to activate the voting machines, and there are no back-up paper ballots). Meanwhile, however, poll workers can sign voters into the poll book, which is a paper document. In this situation, poll workers can be ordered to make a notation in the poll book next to the name of everyone who signed in before machines became operable or emergency paper ballots were supplied. The court order then can permit anyone with this notation next to his or her name in the poll book to return for up to two hours after scheduled closing hours in order to cast the ballot they were unable to cast at the beginning of the morning. A limited remedy of this nature would not raise the Equal Protection concern of permitting anyone at that precinct to vote for two hours after the regularly scheduled closing time, whether or not they were among those who had attempted to vote at the beginning of the day, while similarly situated voters in other precincts get no such extra voting opportunities.

Of course, not all emergency situations lend themselves to such narrowly tailored remedies. Systemic failure of electronic poll books for several hours without paper back-up, like the one that occurred in Denver in 2006, would make it impossible to identify the specific voters injured by this breakdown. So, too, would a shortage of poll workers that caused the lines to sign the poll book to be over two hours long. In these circumstances, a federal court’s only remediable option may be to extend polling hours for every citizen in the precinct, whether or not they personally suffered from the inability to sign the poll book earlier in the day.

But before ordering an extension of hours even in this situation, the federal court should address why the relevant state officials themselves have not ordered, or requested, this extension. It may be difficult to imagine from this vantage point a good reason why they would not do so. But essential to federal court’s remedial inquiry is to give the state an opportunity to explain itself in the actual situation that arises.

Limiting the Extension to Selected Precincts Reduces, Rather than Increases, Inequalities of Voting Opportunities

Let’s assume now that the federal court has reached the judgment that an unqualified extension of polling hours in some precincts is imperative. Now the question is whether the federal remedy should be confined only to those precincts or, instead, whether evenhandedness justifies a statewide, countywide, or some other broader extension. (As long as the state’s chief elections officer is named as a defendant in the case, the federal court should not doubt its jurisdiction to issue a statewide decree where necessary to comply with Equal Protection: the federal court can order this state official to take whatever steps are necessary to keep polls open throughout the state. If the plaintiffs have not named the state official as a defendant, that defect can be quickly remedied, or the case dismissed.)

One way to address this question is to ask whether the extra hours in the specified precincts make up for lost time in a way that results in a total amount of voting opportunity in all precincts that is roughly comparable. For example, if polls don’t open at all for two hours in some precincts, because the poll workers there fail to show up, then extending voting for two extra hours in just those precincts arguably gives voters in these precincts equivalent voting opportunities to the regularly scheduled hours in other precincts, where polls opened on time. Similarly, if all voting stops at a particular precinct for two hours in the middle of the day—because of a complete lack of any ballots for that period—then arguably a two-hour extension puts the precinct back on the same footing as others. (Again, however, would it be possible to order the more narrowily tailored remedy of a notation in the poll book next to the names of the voters waiting for a resupply of ballots?)

But it is necessary to be careful with these kinds of judgments. Just because voters are waiting in line for over two hours in the middle of the day, it does not mean than an extension of more than two hours at the end of the day puts that precinct in a comparable position as others that receive no such extension. The two-hour wait might have been the “peak” amount, applicable only to a few voters for a minute or so, before subsiding back down to shorter waits. (The length of an individual’s wait in line is not the same as the duration of time that waits of that magnitude existed at the polling place.) It is necessary, too, consider what the waits have been at other precincts: maybe voters elsewhere waited for over an hour during a five-hour period, although lines there never got over two hours, whereas the one precinct where the wait briefly was over two hours had only a three-hour period where lines were more than one hour in length. (This one precinct, then, experienced a more “intense” rush on the voting process, whereas elsewhere it was more sustained and steady.) It is not at all obvious that it would be appropriate to extend voting for two hours in just this one precinct, based on the fact that a few voters experienced two-hour waits there.

Moreover, to the extent that delays in voting occur towards the end of regularly scheduled hours, there is even more reason for a federal court to be cautious before ordering an extension of hours in a select number of precincts. Many states have laws that permit voters who are already waiting in line when polls are scheduled to vote to remain in line until they are able to cast their ballots, although no one else can enter the line after closing time. A federal-court extension of voting hours is superfluous for the voters protected by these state laws. Moreover, the federal-court order cannot reduce the amount of time a voter must stand in line. There still may be a long wait even during the entire extra period of time that the federal court orders—and perhaps beyond if the backlog of voters is that large. (For example, a federal court might order an extra two hours of voting, but the lines at precincts may be over three hours long, and thus under state law voting will continue past the new “closing time” pursuant to the federal extension.)

Consequently, as another rule of thumb, when states permit anyone in line at closing to cast a ballot, then a federal court should not order an unqualified extension of polling hours at select precincts within a hour of the regularly scheduled closing time (or within two hours of closing time in those states that also provide ample “no excuse” absentee and/or early voting). In these situations, the federal-court extension adds nothing of value as a remedy for a federal constitutional violation, and it can only be problematic insofar as it grants extra voting opportunities to some, but not all, who suffered no previous inability to cast a ballot.

Fairness to opposing candidates

As a final test of equity, before ordering an unqualified extension of polling hours solely in select precincts, a federal judge should ask whether competing candidates each should consider the selective extension justified under the circumstances.

It is unlikely of course that two opposing candidates will both actually agree that the selective extension should be ordered. If one side seeks the extension, the other side is likely to oppose it for that reason alone.

But it is possible to ask how the opposing candidate would respond if the opposing candidate were being fair to both sides. It is a thought experiment akin to the “veil of ignorance” famously proposed by the philosopher John Rawls. If neither candidate momentarily knew which of the two each was, would both candidates behind this “electoral veil of ignorance” agree to the selective extension as a fair resolution of the problem that has just occurred? If the federal judge’s honest answer to this thought experiment is “yes,” then this answer gives the judge some comfort that the contemplated decree should be perceived as impartial towards the competing candidates. But if the judge’s honest answer is “no”—competing candidates behind this electoral veil of ignorance would prefer a different remedy (or even no remedy at all)—or if the judge is honestly uncertain about the impartiality of the contemplated remedy, then that is yet an additional reason that the judge should decline to impose the contemplated decree.

This final component of the proposed working rule of equity for Election Day is obviously speculative. For that reason, it is the least significant in terms of the practical operation of the proposed rule, which certainly could be reformulated to omit it. Still, its inclusion orients the court to a basic principle at stake in Election Day litigation: the need that the court’s ruling be seen by the candidates, as well as their supporters within the public, as impartial and fair. It is not enough that the federal judge think he or she is impartial and fair; it is essential that the candidates and the public perceive the court to be so. This thought experiment, of putting the shoe on the other foot (so to speak), causes the court to pause and consider how the contemplated decree will appear to all those with a stake in the outcome of the election.

Election Law @ Moritz | Professor Edward B. Foley, Director | electionlaw@osu.eduPlease note: Election Law @ Moritz is nonpartisan and does not endorse, support, or oppose any candidate, campaign, or party. Opinions expressed by individuals associated with Election Law @ Moritz, either on this web site or in connection with conferences or other activities undertaken by the program, represent solely the views of the individuals offering the opinions and not the program itself. Election Law @ Moritz institutionally does not represent any clients or participate in any litigation, but individuals affiliated with the program may from time to time in their own personal capacity engage in pro bono representation of clients other than partisan candidates or organizations.

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Election Law @ Moritz | Professor Edward B. Foley, Director | electionlaw@osu.eduPlease note: Election Law @ Moritz is nonpartisan and does not endorse, support, or oppose any candidate, campaign, or party. Opinions expressed by individuals associated with Election Law @ Moritz, either on this web site or in connection with conferences or other activities undertaken by the program, represent solely the views of the individuals offering the opinions and not the program itself. Election Law @ Moritz institutionally does not represent any clients or participate in any litigation, but individuals affiliated with the program may from time to time in their own personal capacity engage in pro bono representation of clients other than partisan candidates or organizations.

The Ohio State University | Michael E. Moritz College of Law | 55 West 12th Avenue | Columbus, OH 43210-1391 | (614) 292-2631